All posts by Nicholas Stephanopoulos

Partisan Advantage Tracker

I wanted to flag this valuable resource that Jon Eguia has just made public. It calculates the expected partisan bias of each congressional map, and of the U.S. House as a whole, using a range of common metrics. It also helpfully reports these biases in seats, making it obvious what each state’s contribution is to the overall skew of the U.S. House. In sum, using the efficiency gap, the U.S. House is expected to be biased in a Republican direction by about ten seats. That’s a substantial but not enormous tilt, about the same as that exhibited by the U.S. House over the last couple elections (but around half the level directly after the last round of redistricting).

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“The Novel Strategy Blue States Can Use to Solve Partisan Gerrymandering by 2024”

Aaron Goldzimer and I wrote this piece for Slate, arguing for a third-best response to congressional gerrymandering if neither Congress nor the federal courts are willing to tackle the problem. States should enact reforms requiring their congressional maps to be drawn to promote national partisan fairness to the extent possible. At present, if just a handful of key states did this (say California and New York alone), the result would be a nearly perfectly balanced House.

If existing state reforms are counterproductive, and if the federal government has consigned itself to the sidelines, how can a House that accurately reflects the will of the people be achieved? One promising idea is for blue states to require their congressional maps to promote national partisan fairness to the extent possible. There exist several statistical measures of maps’ partisan fairness. These metrics could be applied to the House as a whole rather than to any individual map. Blue states could then design their districts with the aim of minimizing the bias of the House in its entirety.

In practice, this would mean one of three things. If the House as a whole is reasonably balanced, blue states would draw fair maps. If the House is skewed in Democrats’ favor (as it was in the 1970s and 1980s), blue states would craft pro-Republican maps. And if the House has a pro-Republican tilt (as over the last decade), blue states would redistrict to benefit Democrats. . . .

Had New York enacted a reform along these lines, its now-defunct congressional map would be valid. Again, that map made the House fairer by helping to offset pro-Republican gerrymanders elsewhere. This idea is potent enough that if just a few more blue states were persuaded, an unbiased House would actually be attained. Notably, California, Colorado, and Washington are all blue states whose independent commissions are barred from considering partisanship. If instead those commissions were instructed to pursue national partisan fairness—for instance, through voter initiatives taking effect later this decade—the commissions are responsible for enough districts that a fair House would, in fact, be the result.

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Jacksonville racial gerrymandering suit

I wanted to flag this interesting racial gerrymandering suit that Harvard Law School’s Election Law Clinic filed yesterday, in collaboration with the ACLU of Florida and the Southern Poverty Law Center. The suit alleges that Black voters were unconstitutionally packed into four Jacksonville City Council districts — and equally unlawfully removed from three adjacent districts. I’ll have more to say about this suit as it unfolds. For now, the complaint is here, and this is the Election Law Clinic’s summary of the case:

Following the 2020 Census, the Jacksonville City Council enacted new district plans, redrawing the voting districts for the next decade. In passing these maps, the Council impermissibly packed Black residents into four Council Districts. As a result, the Council also ensured an artificially high white population in three adjacent districts. 

The Council has no reason to do this that survives legal scrutiny. It was unnecessary for Voting Rights Act compliance, and the Council made no efforts to analyze the level of Black population needed for Black voters to have the opportunity to elect their candidates of choice. Instead, the Council set uninformed racial targets and subordinated traditional redistricting criteria to improper racial considerations. 

This racial gerrymandering violates the Fourteenth Amendment to the U.S. Constitution. The lawsuit also challenges the maps as illegal under the City Charter, which requires districts to be logical and compact. 

The packed districts snake through the City to capture as many Black voters as possible, making their Black populations artificially high. The Black populations of the surrounding districts are simultaneously depressed because they carefully avoid concentrations of Black voters. As a consequence, most of Jacksonville’s Black voters are segregated into just four of fourteen districts, depressing their influence over City Council elections overall. 

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HLS Democracy Series Event on Redistricting

I’ll be moderating the final session of Harvard Law School’s Democracy speaker series tomorrow, on the subject of redistricting and gerrymandering. The panelists will be Michael Li of the Brennan Center, Deuel Ross of LDF, and Jason Torchinsky of Holtzman Vogel. The event will be from 12:45pm-1:45pm via Zoom. You can register here, and a description of the event is below:

The decennial redistricting process is in full swing. Every district map in America must be redrawn this year. Almost every district map, it sometimes seems, will end up in litigation. The driver of much of this activity is gerrymandering: the drawing of district lines for partisan advantage. This is the first redistricting cycle in forty years in which there is not even a theoretical possibility that federal courts will intervene to curb gerrymandering. Advances in mapping technology also combine with changes in voter behavior to make gerrymandering more potent than ever.

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Montana Vote Suppression Decision

A Montana trial court granted a preliminary injunction today in a set of consolidated cases challenging a number of suppressive laws passed late in the 2021 Montana legislative session (Montana Democratic Party v. Jacobsen; Western Native Voice v. Jacobsen; and Montana Youth Action v. Jacobsen).  The case brought by the ACLU of Montana, ACLU, Native American Rights Fund, and the Election Law Clinic at Harvard Law School challenges the repeal of Election Day Registration and a ban of absentee ballot return assistance on multiple state constitutional grounds on behalf of two organizations that support voting rights for Native voters and four Native American tribes.  Cases on behalf of the Montana Democratic Party and Montana Youth Action also challenged new voter ID restrictions and limitations of the use of absentee voting for voters who turn 18 in the month preceding Election Day. 

The Court found that the Plaintiffs in the consolidated cases had made the necessary showing for preliminary relief on multiple state constitutional grounds.  The enactments and the lawsuits came on the heels of a similar ban on absentee ballot assistance that the Montana Democratic Party and Western Native Voice Plaintiffs challenged and saw struck down after two separate trials in 2020. 

The Western Native Voice Plaintiffs demonstrated the disparate impact of these new laws on Native voters living on reservations in Montana, a group that already faces substantial barriers to accessing the vote.   

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The New York Gerrymander That Wasn’t (That Extreme)

New York’s new congressional plan has attracted attention as one of the most aggressive Democratic maps of this cycle. So I was curious to see how it scores along various metrics. First, its projected efficiency gap of 5% pro-Democratic is substantial but not enormous. (The same is true of its projected declination.) Second, the New York plan has seven (of twenty-six) districts projected to be decided by fewer than ten percentage points. (By comparison, the Texas plan has just three (of thirty-eight) such districts.) And third, the New York plan is about 0.5 seats more pro-Democratic than the median map produced by a nonpartisan computer algorithm. (The enacted plan is estimated to have 22.3 Democratic seats, compared to a median of 21.7 Democratic seats in the computer simulations.)

The takeaway seems to be that the New York plan is a moderate — not an aggressive — Democratic gerrymander, which will also include a nontrivial number of competitive races. Why is the perception of the plan different from this reality? Probably because the 2010s New York plan was somewhat biased in a Republican direction. Moving from a modestly pro-Republican plan to a moderately pro-Democratic plan feels like a big shift. But of course, the status quo ante isn’t any kind of privileged benchmark. Both absolute fairness (captured by measures like the efficiency gap and the declination) and relative fairness (captured by the computer simulations) are better baselines, and they tell the same story of a substantially but not severely biased map.

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“Districts for a New Decade–Partisan Outcomes and Racial Representation in the 2021 Redistricting Cycle”

Eric McGhee, Mike Migurski, and Chris Warshaw posted this new paper comparing the newly enacted congressional and state legislative district plans to their predecessors. The main findings are:

(1) The national House map is substantially fairer but still nontrivially skewed in a Republican direction.

(2) Commission-drawn plans now do much better than politician-drawn plans in terms of partisan fairness. (This was unclear in past cycles.)

(3) Most of the nationwide drop in competitive House districts is attributable to a handful of Republican-drawn plans (GA, IN, TX).

(4) The AL and SC congressional plans stand out for the poor representation they provide to Black voters.

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Alabama Urges a “Race-Blind” Theory of the VRA

Rick surveyed the Supreme Court filings in the Alabama VRA case. I wanted to flag that Alabama’s position is exactly the “race-blind” theory of the Voting Rights Act that Jowei Chen and I described (very much without endorsing) in our recent Yale Law Journal article, “The Race-Blind Future of Voting Rights.” Current VRA doctrine is obviously race-conscious: The first Gingles factor asks whether an additional majority-minority district could be drawn; the second and third Gingles factors ask whether there’s racial polarization in voting; the totality of circumstances covers, among other things, the proportion of minority opportunity districts in a state; and so on. In contrast, Alabama would have VRA liability hinge on a single question: Did a state draw as many minority opportunity districts as would have arisen from a race-blind redistricting process relying only on non-racial criteria? Alabama claims that a race-blind line-drawing process would yield only a single Black opportunity district, meaning that the state’s failure to draw a second Black opportunity district doesn’t violate the VRA.

As Rick pointed out, Alabama’s position is a direct attack on the entire doctrinal infrastructure erected in Gingles and subsequent cases. Alabama’s position — which would effectively turn the VRA into a disparate treatment statute — is also at odds with the 1982 amendments to the VRA, whose whole point was to make the VRA a disparate impact law. Nevertheless, it’s likely that at least some Justices will be attracted to Alabama’s position for reasons that Jowei and I canvass in our article. We also analyze the racial and partisan consequences that would follow if Alabama’s position were endorsed by the Court. In a nutshell, (1) there would be substantially fewer minority opportunity districts in America, (2) the remaining minority opportunity districts would have smaller minority populations, and (3) the partisan effects would be minor except in the South, where Republicans would benefit.

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Gerrymandering and Other Things

A few quick points in response to Ned’s thoughtful post about congressional gerrymandering. First, the crux of the debate is how much value (if any) to place on a fair national map for the House of Representatives. I think that’s the most important issue in congressional redistricting. The House is a single legislative chamber. If it’s significantly biased in either party’s favor, then skewed representation—and skewed policy—will necessarily follow. That’s the critical thing to avoid, in my view: a House that does things that the American people don’t want it to do. But obviously, not everyone agrees with me, and folks that put little or no weight on a fairly constituted House will be repulsed by the idea of offsetting gerrymanders.

Second, as ever, it’s important not to confuse partisan gerrymandering with other evils. As I’ve previously pointed out, partisan fairness is orthogonal to competitiveness. In theory, you can have biased or unbiased maps that are competitive or uncompetitive. In practice, too, there’s no correlation between measures of partisan fairness and measures of competitiveness. Unsurprisingly, the Democratic gerrymanders we’re talking about aren’t particularly uncompetitive. They’re particularly biased—but that’s a different problem. Democrats have actually drawn quite a few districts they could lose in good Republican years, precisely so they have a shot to win even more districts in neutral or good Democratic years.

Third, and on a similar theme, Democratic gerrymandering is neither here nor there when it comes to pressures within the Republican caucus, McCarthy’s relationship with Trump, and so on. Republican gerrymanders might be relevant to those issues. But after the collapse of the FTVA, Republican gerrymanders are baked in. Does anyone think that Republican members of Congress will be more sensible, or that McCarthy will increase his distance from Trump, if there are fewer Democratic members of Congress from Illinois, Maryland, New York, etc.? I find the notion farfetched.

Lastly, we’re not the first to argue about whether congressional gerrymandering is best understood on a national or state-specific basis. Adam Cox wrote a great article about this very topic in the wake of Vieth. I encourage folks to check it out.

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“How Manchin and Sinema Completed a Conservative Vision”

Ron Brownstein in the Atlantic on Chief Justice Roberts’s responsibility for — even authorship of — the poor state of American democracy.

Roberts as much as anyone set in motion the events that have led to this week’s climactic Senate confrontation over voting legislation. In a series of rulings over the past 15 years, the Supreme Court, often in decisions written by Roberts himself, has consistently weakened federal oversight of voter protections and struck down federal regulations meant to reduce the influence of money in politics. Almost all of those decisions have unfolded on a strict party-line basis, with the Republican-appointed justices outvoting those appointed by Democrats.

Those decisions have had an enormous practical impact on the rules for American elections. But many voting-rights advocates say that the rulings have been equally important in sending a signal to Republican-controlled states that the Supreme Court majority is unlikely to stand in their way if they impose new restrictions on voting or extreme partisan gerrymanders in congressional and state legislative districts. . . .

Roberts has often appeared reluctant to let the Court be seen in purely partisan terms. But that instinct, as many critics have noted, has not extended to cases involving the core electoral interests of the two political parties—cases in which he’s been entirely willing to engineer sharply divided rulings that separate the justices along partisan and ideological lines. (No Democratic-appointed justice has supported any of these rulings.)

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An ISL challenge in Ohio?

Now that the Ohio Supreme Court has struck down Ohio’s congressional plan on state constitutional grounds, it’s worth considering whether an “independent state legislature” challenge could be brought on this basis. The thrust of the challenge would be that the court infringed the Ohio legislature’s essentially plenary power over congressional redistricting (in the absence of congressional action) under Article I, Section 4.

For several reasons, I think this would be an especially weak ISL suit. First, the state constitutional provision the court enforced (Article XIX’s prohibition of congressional plans that unduly favor a political party) was ratified by the Ohio legislature in 2018. So this isn’t a case (like Arizona Independent Redistricting Commission) where the state constitutional provision was adopted by voter initiative, thereby bypassing the legislature. Second, the state constitutional provision is an explicit ban on aggressive gerrymandering. It’s not some highly abstract clause whose application to redistricting the legislature couldn’t reasonably have anticipated. Third, the state constitutional provision doesn’t cut the legislature out of the redistricting process. Again unlike AIRC, the legislature enacted the plan that was invalidated, and it will now have the chance to pass a lawful remedial map. Lastly, this scenario of congressional gerrymanders being curbed by state constitutions is exactly what Chief Justice Roberts envisioned in Rucho. As the author of the dissent in AIRC, he can’t possibly think there’s an ISL problem with what transpired in Ohio.

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“Census Memo Cites ‘Unprecedented’ Meddling by Trump Administration”

New evidence on the Trump administration’s meddling with the Census, confirming its focus on excluding noncitizens from the population count for reapportionment purposes.

The memo laid out a string of instances of political interference that senior census officials planned to raise with Wilbur Ross, who was then the secretary of the Commerce Department, which oversees the bureau. The issues involved crucial technical aspects of the count, including the privacy of census respondents, the use of estimates to fill in missing population data, pressure to take shortcuts to produce population totals quickly and political pressure on a crash program that was seeking to identify and count unauthorized immigrants.

Most of those issues directly affected the population estimates used for reapportionment. In particular, the administration was adamant that — for the first time ever — the bureau separately tally the number of undocumented immigrants in each state. Mr. Trump had ordered the tally in a July 2020 presidential memorandum, saying he wanted to subtract them from House reapportionment population estimates.

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“The Justice Dept. alleged Jan. 6 was a seditious conspiracy. Now will it investigate Trump?”

WaPo on next steps in the Jan. 6 inquiry:

But so far the department does not appear to be directly investigating the person whose desperate bid to stay in office motivated the mayhem — former president Donald Trump — either for potentially inciting a riot or for what some observers see as a related pressure campaign to overturn the results of the election.

The House select committee on Jan. 6 is investigating both matters, separate from the Justice Department, and has aggressively pursued information about Trump and those closest to him. But FBI agents have not, for example, sought to interview or gather materials from some of Trump’s most loyal lieutenants about their strategy sessions at the Willard hotel on how to overturn the results of the 2020 election, according to participants in those meetings or their representatives. . . .

But some legal analysts say they worry Garland might be moving too cautiously.

“The other shoe has yet to drop — that is: When will the Justice Department promptly and exhaustively investigate the part of the coup attempt that I believe came perilously close to ending American constitutional democracy, basically, without a drop of blood?” said Harvard Law School Professor Laurence Tribe, a constitutional scholar and outspoken Trump critic.

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“FEC report shows how national party committees allegedly blow past contribution limits”

Persuasive evidence that circumvention of federal contribution limits has occurred since McCutcheon struck down the aggregate limits.

A fundraising committee operated jointly by the Trump campaign and the Republican National Committee in 2016 served as a vehicle for state parties to pass more than $27 million to the national party in possible violation of contribution limits, the Federal Election Commission’s general counsel found almost three years ago.

The general counsel’s report, available since 2019, was newly released Friday in an updated and unredacted form because of a development in an associated case. It mirrors findings from the FEC general counsel’s office about similar activity by a joint fundraising committee benefiting Hillary Clinton in 2016. The alleged sum funneled through state party committees in that case was even larger: $112 million. . . .

“The facts of this case appear to present the scenario that troubled numerous Justices in McCutcheon: a pre-arranged plan to circumvent the contribution limits via joint fundraising,” the general counsel’s report found in both cases. It determined there was reason to believe the national committees accepted excessive contributions and recommended the FEC reach a similar conclusion.

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